Ombudsman Report on Suggested Improvements for USCIS

Every year, the Citizenship and Immigration Services (CIS) Ombudsman submits a report to the U.S. Congress on the state of immigration services within the Department of Homeland Security (DHS). This report is a key component of the CIS Ombudsman’s role. The Ombudsman’s office reviews U.S. Citizenship and Immigration Services (USCIS) activities and processes, and makes recommendations for improvement to Congress.

CIS Ombudsman Can Help with Individuals’ Cases

The Ombudsman’s office provides individual assistance with case-related problems at the USCIS that failed to be resolved by other means. This assistance is part of the Ombudsman’s mission. Of course, this role also directly helps to provide the Ombudsman’s office with insight into real-world problems faced by those seeking immigration benefits from the USCIS.

Increase of 270% in Variety of Requests for Case Assistance

The 2016 Annual Report states that, over the past four years, the Ombudsman’s office has seen requests for help with USCIS case problems increase by 270 percent. The report addresses many different problem areas, ranging from I-601A provisional waivers to the deferred action for childhood arrivals (DACA) program to background checks and clearances to various employment-based immigration issues.

Common Problem: Background and Security Check Delays

Delays in background checks and security clearances are an ongoing problem affecting applicants for immigration benefits like I-485 adjustment of status and even N-400 applications for naturalization. The 2016 Annual Report confirms that people “continue to experience case processing delays caused by background checks and other types of security screening.”

Recent Terrorist Attacks Mandate Expedited Security Screening

The CIS Ombudsman recommends that the USCIS create a unified process to complete background and security clearances, whether going through the Federal Bureau of Investigations (FBI) or U.S. Immigration and Customs Enforcement (ICE), that gives priority to cases when the clearance screening identifies a potential security issue. This way, instead of an application being stuck, waiting for a background check to be completed because of a security concern, the 2016 Annual Report recommends clarifying whether or not there really is a security threat on a priority basis.

The CIS Ombudsman also recognizes that the different types of required security checks have become even more important, since the terrorist attacks in Paris and San Bernardino.

Reason: Terrorists Should be Flagged Earlier

The report explains that the USCIS uses various internal and external ways to run checks on applicants for immigration benefits. The government is encouraged to expedite the completion of this review process when a red flag occurs, so that those posing actual threats to national security can be separated from people who pose no harm. The delays in these checks can have serious, life-altering effects on people who may lose out on job opportunities or be unable to travel.

Social Media to be Part of Background Checks

The USCIS is in the process of finalizing new policy guidance on the use of social media as part of its background check process.

Ombudsman Suggests Filing FOIA Requests for Delays

The 2016 Annual Report also suggests filing a Freedom of Information Act (FOIA) request for information on a case when it is delayed. In many instances, an individual’s record may have inaccurate details that could be at the root of the processing delay. The results of the FOIA request then provide information one may use to try to correct her/his record.

AC21 Portability

With respect to employment-based immigration, the report recognizes that the USCIS has taken steps toward providing greater clarity on the portability provisions of the American Competitiveness in the Twenty-First Century Act (AC21) for green card applicants. As discussed in the MurthyDotCom NewsBrief, Final Policy on AC21 ‘Same or Similar’ Job Requirement (07.Apr.2016), the USCIS issued a final memo earlier this year to shed light on the qualifications for this immigration benefit.

The CIS Ombudsman, however, points out, “USCIS must reconsider its position on Form I-140” to allow individuals with AC21 green card portability the greater job flexibility that Congress intended with this law. The report further recommends that the USCIS carefully monitor the use of this new memorandum by officers, to avoid the “uncertainty, confusion, and controversy” that many people fear will result from the memorandum.

Employees Should have Legal “Standing” in I-140 Petitions

One important area of concern addressed by the 2016 Annual Report involves beneficiary standing, with respect to an I-140 petition. The CIS Ombudsman explains that, under the current law, the petitioner / sponsoring employer (only), and not the foreign national / beneficiary, has the right to respond to a notice of intent to revoke (NOIR) on an I-140 petition. This restriction creates a significant problem for those employees who have used AC21 portability to change jobs and employers, and where the employee is no longer working for the original green card sponsoring I-140 employer. The CIS Ombudsman recommends that the USCIS modify its position to allow a beneficiary to respond to an I-140 NOIR if the individual previously ported to a new employer pursuant to AC21. More details on this topic are available in the MurthyDotCom NewsBrief, Murthy Law Firm Files Brief in Support of Individual Rights in AC21 Cases (15.Jun.2015).

Conclusion

This year, the CIS Ombudsman’s report runs to almost 90 pages, with details and footnotes on a full range of subjects dealing with U.S. immigration matters. The USCIS is required to respond to the report’s suggestions and will sometimes even accept the changes proposed in these reports.

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